People v. Gilbert

• Decision Date: 27 June 1963
• Docket Number: Cr. 3421
• Citation: 217 Cal.App.2d 662,31 Cal.Rptr. 920
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Wallace GILBERT, Defendant and Appellant.

Page 920

31 Cal.Rptr. 920

217 Cal.App.2d 662

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Wallace GILBERT, Defendant and Appellant.

Cr. 3421.

District Court of Appeal, Third District, California.

June 27, 1963.

Richard S. Simmons, Sacramento, under appointment by Third Dist. Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Roger E. Venturi, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

In this appeal from a conviction by a jury for perjury, the contentions are: (1) a defective information failing to state a public offense, (2) insufficiency of the evidence to support the verdict, and (3) that inadmissible evidence admitted, although later stricken by the court, was so prejudicial its effect upon the jury could not be cured.

The information alleged inter alia that defendant on May 29, 1962, at Butte County, California, did 'wrongfully, wilfully, and feloniously in the Justice Court of the Chico Judicial District, County of Butte, State of California, commit perjury in testifying falsely under oath as to matters material to an action entitled 'The People of the State of California vs. Jack W. Gilbert' * * *.'

It is contended that Penal Code section 966 covering the pleading of perjury was not complied with because the information does not recite that the court were the alleged perjury is said to have been committed 'had authority to administer' the oath. ¹

It has been held, however, that the purpose of the allegations of an information or indictment is to advise the defendant of the charge against him sufficiently to enable him to prepare his defense thereto and, therefore, a statement of the title of the court and controversy where the alleged false testimony was given, coupled with proper allegations of the falsity of the matter on which the perjury is assigned, is sufficient to advise him as to the identity of the officer administering the oath and the fact of his authority. (People v. Barry, 153 Cal.App.2d 193, 314 P.2d 531.) The facts of Barry were quite similar to the facts here in that the information charged that defendant had testified falsely in a preliminary examination on an order to show cause for contempt in the Municipal Court of the Los Angeles Judicial District in a proceeding named, but did not specify the name of the judge, or clerk administering the oath. The court stated 153 Cal.App.2d on page 203, 314 P.2d on page 537:

'Reference by appellant to the transcript of the testimony adduced at the preliminary examination would apprise him of the fact that the oath here in question was administered to him by Lamar M. Mitchell, clerk of the court in which appellant was testifying.'

The case at bench differs from Barry in that the proceedings of the justice court were not reported or transcribed. Reference by Gilbert to the court named in the information and to its minutes, however, would have disclosed the name of the clerk and the fact that he had administered the oath.

The defect, if any, moreover, was waived by failure to demur under Penal Code sections 1003 and 1004. (People v. Barry, supra.)

The evidence is sufficient to support conviction of perjury.

At approximately 2 A.M., April 28, 1962, defendant, Gilbert, a minor, purchases several cartons of beer at a Chico liquor store. As he left the store, he was observed by two patrolling police officers, Olson and Adams, one of whom got out of the car, questioned Gilbert, who told the officer his name was Robert G. Rodrequiz and that he was 23 years old. He was allowed to continue on his way. The two officers followed him, but when they drove around the block and lost sight of him briefly, Gilbert was able to and did, hide the beer behind a tree. Gilbert then met a Chevrolet Automobile and talked with its occupants. Adams and Olson followed this car when it drove away, radioing to another officer, Thomas Payne, describing Gilbert, and requesting Payne to drive to the area and follow Gilbert. Payne did so and, seeing Gilbert standing beside a tree, got out of his car and questioned him. This time Gilbert gave his true name, denying he had previously been stopped by Adams and Olson or that he had given his name as Rodrequiz. Later a search of the area where Payne had questioned Gilbert was made by the police. The cartons of beer were found; also recovered was an 'I-D' card made out to Rodrequiz.

Gilbert was tried in the Justice Court of the Chico Judicial District upon a charge of possession by a minor of an alcoholic beverage. At the trial he testified he was not the person who purchased the beer nor the person who, with the beer in his possession, had been questioned by Officer Adams and who had identified himself as Rodrequiz, stating his age as 23. (This is the testimony constituting the basis of the perjury charge.) Robert Rodrequiz also testified at the justice court trial. He stated he was the one who had made the purchase and whom Officer Adams had questioned. (This was the alleged perjury with which Rodrequiz was charged.)

Thereafter the district attorney filed an information charging Gilbert, and another information charging Rodrequiz, with perjury as aforesaid. The cases were consolidated for trial. The jury returned guilty verdicts against both. Gilbert alone has appealed.

The only contention by Gilbert regarding the insufficiency of the evidence which merits discussion is that the prosecution failed to prove that an oath had been administered to Gilbert in the justice court trial and that this was an omission fatal to the proof of the commission of the offense of perjury. It is, of course, axiomatic that proof of the administering of an oath (or affirmation) is indispensable since perjury by definition is a false material statement by a person who, before giving the statement, has taken an oath he will testify truly. (Pen.Code sec. 118.) The Attorney General, conceding this, argues that there is such proof here.

Three witnesses, Officers Adams and Olson, and Helen Rice, the criminal clerk of the Chico Justice Court, testified for the People. Mrs. Rice stated that Gilbert had 'testified' (outlining his story as she recalled it). Officer Olson also affirmed that he had overheard Gilbert's 'testimony' given at the justice court trial. He stated that Gilbert had testified he 'hadn't seen either Officer Adams or myself [Olson] that night until he was brought to the location' at Memorial Way and Esplanade by Officer Payne; that this testimony was untrue. Officer Adams, who also was present at the trial in the justice court stated Gilbert had 'testified.' (This officer was less clear as to the substance of Gilbert's testimony.)

The statutory definition of the word 'testify' embraces every mode of oral statement made under oath or affirmation. (Pen.Code sec. 7; Civil Code sec. 14; Code Civ.Proc. sec. 17.)

Black's Law Dictionary, 4th edition, 1951, page 1646, defines the word 'testimony' as being 'Evidence given by a competent witness, under oath or affirmation; * * * [cases cited].'

In Shepherd v. Board of Supervisors, 137 Cal.App. 421, 30 P.2d 578, 581, 'testimony' has been defined as being 'the statement made by a witness under oath.'

To 'testify' is to make a solemn declaration under oath or...